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Friday, September 22, 2017

Tocqueville and judicial departmentalism

Dahlia Lithwick wrote about the litigation of the Joe Arpaio pardon, with the district judge hearing from numerous amici about the constitutional validity and effect of the pardon. The article ends by quoting one amicus, Ian Bassin of Project Democracy: "Thankfully, in America it’s the courts who get the last say on what the Constitution allows."

As I have been arguing again and again in defense of judicial departmentalism, this is not  true as a normative matter, at least not in the absolute sense in which it is presented here, as simply the way it works in America. It may be true as a practical matter in a substantial number of cases, because many constitutional issues wind up in court and the court must decide the constitutional issue to decide the case and the executive does not have discretion to decline to enforce that resulting judgment. When constitutional questions end up in court, the judiciary will get the final word.

This got me thinking of Alexis de Tocqueville, who famously said that "[s]carcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question." (Mark Graber in 2004 revisited Tocqueville's thesis; he argued the statement was not as true as Tocqueville said, but may be more true in current times than it was during the Jacksonian Period in which Tocqueville was writing, as more political questions first get resolved into constitutional questions). Tocqueville's thesis affects just how much judicial supremacy we get in a judicial-departmentalist scheme. The more political questions that are resolved into judicial questions, the more the judiciary is going to get the last word, because the courts must decide the constitutional issues and the executive must enforce those judgments.

The political question of the Arpaio pardon is resolving into a legal question because the pardon touches on pending litigation. But that makes this pardon unusual--most pardons come before any charges have been brought (Nixon) or after the person has been convicted, sentenced, and served some portion of the sentence. So Bassin's comment about the judiciary getting the last word is accurate in this case, because of the unique posture of the pardon. But he is correct only to the extent Tocqueville was correct.

Posted by Howard Wasserman on September 22, 2017 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


The model of departmentalism I am using (cribbed from Gary Lawson) allows the President to ignore precedent but not judgments (Lawson allows for extreme cases--I don't go even that far).

Posted by: Howard Wasserman | Sep 22, 2017 7:50:07 PM

"the more the judiciary is going to get the last word, because the courts must decide the constitutional issues and the executive must enforce those judgments."

Upon what basis /must/ the Executive enforce legal judgments? As I see it as an issue of comity only. While I think the idea of Trump as a "lawless" president is overplayed by liberals I do think that there is truth to the idea that people in general are becoming more and more skeptical of the judiciary's power. We need to look no further in support of that proposition than the fact that Trump's clear and repeated attacks on judicial independence during the election caused him no obvious harm. This is because that skepticism is more likely to find its initial outlet not in a rebellion by Congress but in the refusal of the Executive to enforce the court's judgments. Again, I see it as relevant here that Trump's first and so far only pardon was of a contempt of court citation.

Posted by: Daniel | Sep 22, 2017 4:53:23 PM

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